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Tuesday, January 03, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In US v. Jason Smith (ND Ind., Miller), a 10-page opinion, Judge Williams writes:

On July 14, 2010, an officer with the South Bend Police Department stopped the vehicle that Jason Smith was driving when Smith failed to signal a right turn at an intersection. A search of Smith’s car yielded a loaded revolver, crack cocaine, marijuana, and a digital scale, and he was charged with being a felon in possession of a firearm, possession of crack cocaine with intent to deliver, and possession of a 2 No. 11-2016 firearm in furtherance of a drug transaction, with the indictment stating that the events took place “on or about July 13, 2010.” Smith moved to suppress the items recovered on the ground that the officer lacked probable cause for the stop because a turn signal was not required, which the district court denied. During his trial, the government proved that the traffic stop actually took place on July 14, 2010, and at the close of evidence, Smith moved for acquittal on the ground that the indictment was constructively amended based on the discrepancy in dates, which the court also denied. The jury found Smith guilty on all counts, and Smith appeals the district court’s denial of his motion to suppress and his motion for acquittal, arguing first that he did not commit a traffic violation by failing to signal because he was only bearing right. We disagree and find that under Indiana law, Smith turned right requiring a signal. Smith also argues that the government constructively amended the indictment by stating that the traffic stop occurred “on or about July 13, 2010” in the indictment, but proving a different date at trial. We find no constructive amendment, and affirm the judgment. * * *

Indiana Code § 9-21-8-25 provides that “[a] signal of intention to turn right or left shall be given continuously during not less than the last two hundred (200) feet traveled by a vehicle before turning or changing lanes.” * * *

The statute does not define “turning.” As such, we look to the Indiana courts for guidance. * * * The Oxford English Dictionary defines “turning” as “movement about an axis or centre; rotation, revolution.” Oxford English Dictionary, available at http://www.oed.com/. Headed southbound on Walnut, Smith could have made two “right” choices: a roughly 120-degree right onto Fassnacht, or a less than 90 degree (and thus much more sharp) right onto LaPorte. By going right onto Fassnacht, we find that Smith sufficiently “rotated” so that his movement was a turn under a plain reading of Indiana’s statute. * * *

The record here indicates that continuing “straight” on Walnut also includes some element of a “turn,” but in a five-pronged intersection such as this, we agree with the district court that a plain reading of the statute requires a turn signal from Walnut to Fassnacht. Accordingly, Officer Early had probable cause to conduct the traffic stop. Because we find probable cause based on Smith’s failure to signal, we do not reach the question of whether the vehicle’s window tinting provided independent grounds for justifying the stop.

Posted by Marcia Oddi on January 3, 2012 02:51 PM
Posted to Ind. (7th Cir.) Decisions